Rome II

Latest news: 26 June 2008

In November 2007 Diana Wallis spoke at a conference organised by the University of Athens (Georgia) law school on the subject "Rome II: The 2007 EU Regulation on the Law Applicable to Non-contractual Obligations - European and American Perspectives" . Other participants were Gabriel M. Wilner of the University of Georgia School of Law; Professor Russell J. Weintraub of the University of Texas School of Law; Dean Symeon C. Symeonides of Willamette University College of Law; and Dean Johan Meeusen of the University of Antwerp Law School.

The proceeds of this conference will be published in the near future so watch this space.

21 August 2007

Rome II Regulation published in the Official Journal

Rome II provisional Joint text available

As is customary, the European Parliament has published the Joint text approved by the Conciliation Committee on its website. The adoption of the joint text is foreseen for the plenary session in July in Strasbourg.

!!! Agreement reached at midnight on 15 May 2007 !!!

Diana Wallis with German Justice Minister Mrs Zypries celebrating the end of negotiations (the clock in the background indicates 00h10)

Following six trialogues, the Parliament and Council have come to an agreement on the Rome II Regulation.

The Regulation is set to be published in the Official Journal in July 2007, date at which it will also enter into force. The Regulation will be applicable in the courts of the Member States from the beginning of 2009. The compromise includes the following elements as read out by the Presidency at the end of Conciliation (FOR GENERAL GUIDANCE ONLY - the final text is subject to legal linguistic revision)

Amendments 9, 15 and 19: Common position + drafting committee text

Road Traffic Accidents:

Amendment 11: Conciliation text with words "costs and losses"

Amendment 12: common position + Commission declaration on a study (with words "would pave the way" to a Green Paper) + study on Hague Convention in review clause

The European Parliament adopted the second reading report with an overwhelming majority on Thursday 18 January. MEPs have decided again to underline their support for the original first reading position, again putting back in the Articles relating to defamation and road traffic accidents which had been excluded in the Member States Common Position. There will almost certainly have to be a conciliation process to iron out the final difficulties between the European law-making institutions.

The JURI second reading report

On Thursday 28 September, the Common Position adopted by the Council has been communicated to the European Parliament. The European Parliament had three months to propose amendments to the common position by an absolute majority of its members. On Wednesday 20 December 2006, the Legal Affairs Committee adopted the second reading report, reinserting the Articles relating to defamation and road traffic accidents which had been excluded in the Council Common Position.

The Common Position contains a number of areas differing from the European Parliament report at first reading:

General Rule (Article 4)

The Common Position contains a slightly bigger general rule than in the first reading report as well as a number of specified torts. In particular, Diana may seek a review of unfair competition, product liability, and damages to the environment.

Defamation (Article 30)

This is an area of great concern. Following a decision by the Commission to withdraw defamation from the scope of the Regulation, the issue has been relegated to the general review clause, which will not occur before another four years. Clearly, this issue will continue to haunt us and the European Parliament should at least have the opportunity to reconsider the stance it took with an overwhelming majority at first reading.

The solution adopted by the Council with regard to compensation for road traffic accidents is clearly insufficient and does not take into account the practical problems met by the victims as regards level of damages.

Background

The European Commission put forward a proposal on 22 July 2003 for a regulation on the law applicable to non-contractual obligations. The proposal, known as 'Rome II', deals with the law applicable to non-contractual obligations (eg. cross-border disputes arising from incidents such as negligence, defamation; where there is no contract between the parties). Diana Wallis MEP has been appointed Rapporteur by the European Parliament's Legal Affairs Committee both in this legislature and the previous one.

The Council of Ministers has been examining the Commission text in working groups and at ministerial level. For the first time ( in relation to a regulation on private international law ), the co-decision procedure applies, which means that the European Parliament is granted equal legislative powers with the Council of Ministers.

Diana Wallis presented her 2nd draft ( the first in this legislature ) report to the Legal Affairs Committee on 20 January 2004. She has subsequently produced a redraft having considered certain aspects again in the light of comments received from interested parties. Her basic approach to the general rule offering flexibility for courts has not changed; this distinguishes her approach from that of the Commission. The European Parliament has adopted the Rome II report on 6 July 2005, supporting the rapporteur's approach.

The Commission's revised proposal (February 2006)

On 21 February 2006, the European Commission has put forward a revised proposal for a Regulation on the law applicable to non-contractual obligations in the light of certain amendments passed by Parliament while reflecting proceedings in the Council. In particular, the Commission has withdrawn provisions relating to violation of privacy from the scope of the Regulation and has revisited the rules applicable to traffic road accident. In accordance with the Treaty, the Council has the possibility to amend the revised proposal but must do so by a unanimous vote.

It is incredibly disappointing that the Commission has decided to withdraw the provision relating to defamation from Rome II. Clearly this has pre-empted Member States from having detailed discussions in the Council. For the Council to re-include defamation into the scope of the Regulation, Member States will have to unanimously agree on a common rule which at this stage proves to be impossible.

The European Parliament will have to consider its stance when we receive the Common Position from the Council (scheduled for June). It is inconceivable that we should regulate Private International Law at European level without including the media because this is an area which is so much cross border. Even if we agree to leave the media out of the scope of the Regulation, this would have to be on the understanding that it should be revisited promptly soon, i.e. within two years.

With regard to road traffic accidents, the Commission disapproves of the European Parliament approach and rejected it in its revised proposal. The European Parliament would probably still be seeking action along the lines of the initial amendments as they reflect practical problems for European citizens.

At first reading, the European Parliament had agreed that the applicable shall be the law of the place where the accident occurred. With regard to the quantification of damages, however, the rules of the victim's habitual residence shall be applicable unless it would be inequitable for the victim to do so. According to the revised proposal, the law applicable to personal injuries and to liability would be the law of the country in which the accident occurs.

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